Alaska R. Evid. 509 commentary

The rule recognizes the use of informers as an important

aspect of law enforcement, whether the informer is a citizen

who steps forward with information or a paid undercover

agent. In either event, the basic importance of anonymity in the

effective use of informers is apparent, and the privilege of

withholding their identity was well established at common law.

McCormick (2d ed.) § 111; 8 Wigmore § 2374.

(a) Rule of Privilege. The public interest in law

enforcement requires that the privilege be that of the

government rather than that of the witness. The rule blankets in

as an informer anyone who tells a law enforcement officer

about a violation of law without regard to whether the officer

is one charged with enforcing the particular law. The Rule also

applies to disclosures to legislative investigating committees

and their staffs, and is sufficiently broad to include continuing

investigations.

Although the tradition of protecting the identity of informers

has evolved in an essentially criminal setting, noncriminal law

enforcement situations involving possibilities of reprisal

against informers fall within the purview of the considerations

out of which the privilege originated.

Only identity is privileged; communications are not

included except to the extent that disclosure would operate also

to disclose the informer’s identity. The common law was to the

same effect, 8 Wigmore § 2374.

The rule does not deal with the question of when access to

presentence reports made under Alaska Rule of Criminal

Procedure 32(c) should be denied an accused.

(b) Who May Claim. The privilege may be claimed only

by the public entity to which the information was furnished by

the informer. Thus, a state representative may not claim this

privilege if the informer has dealt solely with federal officers.

The informant depends for protection upon the government

with which he deals directly; if the government refuses to

protect him, no other government can safeguard his identity. In

situations of joint enforcement by different public entities, all

of those that dealt directly with the informant may claim the

informer’s privilege to protect their information source.

Normally the “appropriate representative” to make the claim

will be government counsel. However, it is possible that

disclosure of the informer’s identity will be sought in

proceedings to which the government entity with the power to

claim a privilege is not a party. Under these circumstances

effective implementation of the privilege requires that other

representatives be considered “appropriate.”

(c) Exceptions. This section deals with situations in which

the informer privilege either does not apply or is curtailed.

(1) Voluntary Disclosure—Informer a Witness. If the

identity of the informer is disclosed, nothing further is to be

gained from efforts to suppress it. Disclosure may be direct, or

the same practical effect may result from action revealing the

informer’s interest in the subject matter. While allowing the

privilege in effect to be waived by one not its holder, i.e., the

informer himself, is something of a novelty in the law of privilege, if the informer chooses to reveal his identity further

efforts to suppress it are scarcely feasible. See 8 Wigmore

§ 2274(2).

The exception is limited to disclosure to “those who would

have cause to resent the communication,” in the language of

Roviaro v. United States, 353 U.S. 53, 60, 1 L.Ed.2d 639,

644645 (1957), since the disclosure otherwise, e.g., to another

law enforcement agency, is not calculated to undercut the

objects of the privilege.

If the informer becomes a witness for the government, the

interests of justice in disclosing his status as a source of bias or

possible support are believed to outweigh any remnant of

interest in nondisclosure which then remains. The purpose of

the limitation to witnesses for the government is to avoid the

possibility of the defendant’s calling persons as witnesses as a

means of discovering whether they are informers.

(2)0and (3) Testimony on Merits—Legality of Obtaining

Evidence. This exception and the following one are drafted to

accomplish the same things that the United States Supreme

Court hoped to accomplish when it approved proposed federal

rule 510. But language of the proposed Federal Rule was

heavily criticized by the Committee on the Rules appointed by

the Alaska Supreme Court and by various persons contacted

for comments by the Committee. Thus, the problem areas, this

exception and the next, have been completely reworked.

Both exceptions provide that an initial opportunity to be

heard on a claim of privilege will be granted the parties in civil

and criminal cases, and that this opportunity will be with

counsel present. There is a point under both exceptions at

which the trial judge considers a submission by the

government outside the presence of the parties and their

counsel. The idea of the exceptions is to provide judicial

screening of privilege claims without destroying the utility of

the privilege.

Both exceptions specify the procedures to be followed by

the trial judge, the standards to be used in judging the privilege

claims, and the manner in which the record is to be preserved

for appeal.

The informer privilege, it was held by the leading case, may

not be used in a criminal prosecution to suppress the identity of

a witness when the public interest in protecting the flow of

information is outweighed by the individual’s right to prepare

his defense. Roviaro v. United States, supra. The Rule extends

this balancing to include civil as well as criminal cases and

phrases it in terms of a reasonable possibility that the informer

may be able to give testimony necessary to a fair determination

of the issue of guilt or innocence in a criminal case or of a

material issue on the merits in a civil case. Once the privilege

is invoked a procedure is provided for determining whether the

informer can in fact supply testimony of such nature as to

require disclosure of his identity, thus avoiding a “judicial

guessing game” on the question. An investigation in camera is

calculated to accommodate the conflicting interests involved.

The rule also spells out specifically the consequences of a

successful claim of privilege in a criminal case when the

informant has information that might reasonably help the

defendant on the merits. The wider range of possible harm to

the non-government party demands more flexibility in criminal

cases when the informant has nothing to add on the merits and

in civil cases. Cf. Alaska R. Civ. P. 37. It should be noted that

exception (3) does not speak of a remedy for nondisclosure,

since the remedy is obvious; i.e., granting the motion to

suppress the evidence.

Obviously, the defendant will always have an argument that

it is impossible for the trial judge to foresee all “reasonable

possibilities” that an informant can provide testimony helpful

to the defense. Cf., Alderman v. United States, 394 U.S. 165,

22 L.Ed.2d 176 (1969). But acceptance of this argument would

mean that the identity of many informants who would offer no

help to the defense would be revealed to ensure that those few

who might be helpful do not go undetected. The

counterargument begins with the premise underlying the

informer’s privilege, which is that a grave danger may exist

when an informant is identified. This danger requires that

many informants who might face no real danger be protected

to ensure that those actually in danger are protected, and it

suggests that the defendant should bear a burden of showing

that an informant would be helpful to the defense before

identity is revealed. While the rule rejects both arguments it

errs on the side of the defendant by providing that reasonable

doubts as to the utility to the defense of an informant’s

testimony be decided in favor of exposing the informant. See

United States v. Jackson, 442 F.2d 975 (6th Cir. 1970); United

States v. Lloyd, 400 F.2d 414 (6th Cir. 1968). Since the in camera procedure takes place after some showing is made that an

informant might be able to supply testimony relating to the

merits, it is to be expected that trial judges will require the

government to show by affidavit or otherwise exactly what the

informant knows about the case.

Although Rule 509 extends to all civil and criminal cases,

there is no reason to suppose that the government will attempt

to invoke the privilege improperly in circumstances where an

informant is not threatened by exposure. The rule recognizes

that it is the informant’s perception of danger that often leads

the government to protect identity. To assure cooperation, the

government reasonably may assuage unreasonable fears as

long as it obtains no advantage in litigation in doing so.

Moreover, it will be to the government’s advantage in many

cases to bring forth all witnesses, including informants, who

have favorable testimony to offer, since this maximizes the

government’s chances of prevailing.

One of the acute conflicts between the interest of the public

in nondisclosure and the avoidance of unfairness to the

accused as a result of nondisclosure arises when information

from an informer is relied upon to legitimate a search and

seizure by furnishing probable cause for an arrest without a

warrant or for the issuance of a warrant for arrest or search.

The Supreme Court has held that an informant’s identity

need not be revealed if the only information the informant can

supply relates to probable cause for an arrest. McCray v.

Illinois, 386 U.S. 300, 18 L.Ed.2d 62 (1967). This Rule

recognizes the wisdom of compelling disclosure to the court

when the government’s proof of the circumstances under

which evidence was obtained fails to satisfy the court that the

government’s conduct conformed to law. In light of the policy

of the rule to protect an informant who has “fingered” a

defendant, the rule provides for disclosure in camera to accommodate the conflicting interests. The limited disclosure to the

judge avoids any significant impairment of secrecy, while

affording the accused a substantial measure of protection

against arbitrary police action.

Government counsel should bear in mind that the duty to

disclose exculpatory evidence to a criminal defendant is not

affected by this Rule.